The military pension cap stands: 309 cases rejected and one new argument closed at the Constitutional Court

The cap that stops a net military pension from exceeding the average of the income it was calculated from stays in force. The Constitutional Court rejected, by unanimous vote, the plea raised in 309 cases by hundreds of military and prison-service pensioners, and the reasoning published on 26 October 2026 closes the last new argument in this series as well: the cap is not a disguised form of taxation. The discussion about taxation proper on this income was conducted separately, in the 106 cases on the taxation of service pensions that the Constitutional Court also rejected; here the subject is a different one, the regime under which the pension is calculated and increased.

The provisions challenged are two interventions by the Government in Law no. 223/2015 on state military pensions. The first, article VII of Government Emergency Ordinance no. 59/2017, published on 7 August 2017, inserted into the law the definitions of the net pension and of net monthly military pay or salary, moved the annual updating of pensions onto the average inflation rate and laid down the cap: when the pension is set, the net pension cannot be higher than the average of the net monthly military pay or salaries in the calculation base. The second, article 84 of Government Emergency Ordinance no. 114/2018, published on 29 December 2018, rewrote the increase mechanism and let the cap itself rise with inflation.

The authors of the plea pursued two lines of argument. On procedure, they argued that the 2017 ordinance was adopted without the opinion of the Legislative Council, which was sought only afterwards, and that the urgency was not substantiated, invoking article 1, article 79(1), article 115 and article 147(4) of the Constitution. On substance, they argued that the cap reduces the pension and interferes with the right of property, protected also by article 1 of the Additional Protocol to the European Convention on Human Rights, and that it discriminates against them compared with judges and prosecutors and with service members who retired before the 2017 ordinance came into force, to whom the cap does not apply.

The representative of the Public Ministry asked for the plea to be rejected, pointing out that everyone retires under the law in force on the date their pension entitlement opens, and that different treatment linked to that moment does not breach equality before the law. The Court agreed.

The issue of 26 October 2026 of the Official Gazette carries two further rejections by the Constitutional Court: Decision no. 416/2026, which keeps the allowance for hazardous conditions in the sanitary veterinary system conditional on the basic salary climbing to the level set for 2022 and Decision no. 479/2026, which preserves the 48-hour time limit for the appeal against a court’s refusal to refer a matter to the Court.

The retirement of magistrates came back before the Court, this time inside its own house: Decision no. 20/2026 lets the Plenum postpone its assistant magistrates’ retirement year by year.

What it changes in practice

The decision is final and generally binding from 26 October 2026, the date of publication. Until that moment, the 309 cases were left without an answer, even though the outcome had been known since 26 March 2026.

The courts that referred the cases, and any other court hearing a similar claim, continue to apply article 59 and article 60 of Law no. 223/2015 in the form given by the two emergency ordinances. There is no pension to recalculate and no difference to pay, and the sectoral pension houses have nothing extra to do.

For the future, the most important effect lies in paragraphs 32 to 35. The „disguised tax” argument is now rejected through reasoning of the Court’s own, not through a reference to older decisions, so it can no longer be raised as a novelty. The Court states plainly, in paragraph 31, that no new elements have arisen that would call for its case law to be reconsidered, so a fresh plea on the same criticisms starts from the same conclusion.

The Court also rejected part of the criticisms without examining them. The claimed conflict between the ordinances and article 4(1) of Law no. 73/1993, article 9(2) of Law no. 24/2000, article 24(2) of the rules approved by Government Decision no. 561/2009 and article 29(III)(b) of the Legislative Council’s own rules goes beyond the limits of its jurisdiction, the Court says in paragraph 37: the reference norm has to be of constitutional rank, not a law or a set of rules. On that head, anyone wishing to challenge the way the opinion was given has to go to the ordinary courts, not to the Constitutional Court.

What has changed compared with the previous situation

As regards the legal position, nothing. The outcome repeats what the Court has decided at least 18 times on the same provisions, and the cap on military pensions stays in force, as it has since 2017.

What did change, however, in 2017 and then in 2018, is worth reading one step at a time, because the two ordinances do not say the same thing.

Government Emergency Ordinance no. 59/2017 did three things through article VII. It inserted into article 3 of Law no. 223/2015 two new definitions, letter l) for net monthly military pay or salary, meaning the gross amount less the individual contribution to the state budget, the individual contribution to the health insurance budget and income tax, and letter m) for the net pension, meaning the gross pension less income tax. It rewrote article 59, which from then on provided for annual updating, automatically, by the annual average inflation rate, a definitive indicator known on 1 January and communicated by the National Institute of Statistics, and added an explicit guarantee: if the updating produces a lower amount, the amount being paid is kept. And it rewrote article 60, which became the cap: when the state military pension is set, the net pension cannot be higher than the average of the net monthly military pay or salaries corresponding to the gross amounts included in the calculation base.

Government Emergency Ordinance no. 114/2018 intervened through article 84 in both those articles. It replaced updating with indexation: pensions being paid on 31 December of the previous year are indexed automatically, from 1 January, by the latest annual average inflation rate known on that date, and in paragraph (2) it provided that no indexation is applied if the rate is negative. The 2017 guarantee, the one that kept the amount being paid, disappeared from the text and was replaced by this narrower condition.

This second intervention was, in part, in pensioners’ favour, even though the ordinance was challenged together with the 2017 one. The new article 60 keeps the cap in paragraph (1), but in paragraphs (2) and (3) it allows the net pension to go above the average net income in the calculation base where the excess comes from indexation, without rising higher than the amount obtained by applying the same inflation rate to that average. On successive indexations, the limit grows by the cumulative effect of the earlier ones. In practice, the 2017 cap was fixed, whereas from 2019 it climbs with inflation itself.

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